Pub Rants

A Very Nice Literary Agent Indulges in Polite Rants About Queries, Writers, and the Publishing Industry

Category: What Makes A Good Agent – Article Series

Article 3: Fearless Negotiation: An Agent’s Most Important Role for an Author

 

Article #3: Fearless Negotiation: An Agent’s Most Important Role for an Author

Of all the skills a literary agent is required to have, the most important is the ability to negotiate well on behalf of the author client. Authors hire agents to protect their business interests in publishing. In my mind, and other folks may disagree with me, all other skills are kind of moot without this one.

This is why a literary agent has a job.

To say this another way, your agent might be a great communicator or team builder, give great marketing feedback, have good relationships with editors, have good taste in picking projects (all wonderful skills to have), but if they aren’t also a good negotiator, then just how valuable are these other skills to you and your career? A good agent will have the complete skill set.

All this begs the question: How do you know if your agent is a good negotiator? Here’s how:

1.) Good agents negotiate all deals. Sounds simple enough. Doesn’t that always happen? Not necessarily. 

Good agents don’t accept the initial offer from the editor. There is always something that can be negotiated. A higher advance, a better escalator in the royalty break, two books instead of one, restricting the rights, holding or giving audio. The list goes on and on. I share with my authors the original offer and then the final offer before accepting. Does your agent? They should.

Good agents negotiate the deal even if an author brings the publisher offer to the agent. Where the offer comes from doesn’t matter. Every deal and every contract is negotiable. Always. There are no exceptions.

Good agents are willing to walk away from an offer if the terms aren’t favorable enough for the author. If you are interviewing agents, ask if that person has ever walked away from an offer and why. Every good agent will have a story.

Here’s mine. There is a small but well-known publisher that doesn’t include an actual out-of-print clause in their contract. Instead, they include a clause that says the Publisher will hold a meeting once a year and determine, in good faith, whether the rights should revert to the author.

Well, isn’t that nice and vague? Why have a contract at all then? Why don’t we just shake hands on a deal and the whole publishing endeavor and go from there?

In my view, the contract exists so that crucial items like this are clearly spelled out. After much back and forth, during which the publisher asked why I thought I was so special when the editor could cite dozens of other agents who had allowed their clients to sign the contract with this vague language (uh, why?), I counseled the author to walk away. Ultimately the author makes the final choice. It was devastating and super hard for the client, but said client did walk away. That publishing entity is now defunct.

Talk about dodging a bullet in the long run…

2.) Good contract negotiation takes time. Literally. 

Even with a basic boilerplate for my agency in place, most contracts take 6 to 12 weeks to negotiate fully. Every author is unique. Every deal is unique. So every contract negotiation is unique. There are many rounds of back and forth for the requested changes, as publishers are always introducing new clauses or making tweaks to their house contracts. In addition, there may be unique elements negotiated for your specific deal that necessitate changes to several contract clauses that won’t be true for any other author at that particular house.

The contract belongs to the author, so the author has a right to know all the details about what was negotiated on his/her behalf. When I complete a negotiation, I send on the final contract to the author along with the master redline that shows all the incorporated changes. I also send along the requested changes documentation with all my notes and responses from the publisher so the author can read the entire communication chain. They see what was given, what was let go, and why.  In ad nauseam detail.

The contract is legally binding, and you, the author, are going to sign it. Don’t you want to know and understand what your agent has negotiated on your behalf? If I were an author, I certainly would! I don’t share this info just to “be nice.” It’s rightfully yours.

Does your agent share these details with you? If not, why? Ask for it. Read your contract in its entirety. If there’s anything you don’t understand (and it’s OK if that’s the entire contract!), schedule a phone call with your agent to discuss.

It wouldn’t surprise me if the number is around 50% for agents who don’t fully understand a publishing contract or have the ability to explain the meaning and importance of the clauses there in detail.

Do you really want that person representing you?

If a new boilerplate from a publishing house is introduced, then it can take 6 to 9 months to get a new agency boilerplate in place that is reasonable for an author to sign. In the last 6 years, both HarperCollins and Macmillan introduced entirely new contracts. Rumor has it that later this year Random House and Penguin will merge their contract forms into a new Penguin Random House contract boilerplate. I haven’t seen it yet but it’s probably coming in the not-so-distant future.

Contracts turned around quickly or that take less time than what I’ve mentioned above = the agent is not negotiating or is not standing firm on key items until a compromise is found. And compromise can always be struck so both publisher and author are happy. But that takes time and several rounds of negotiation.

You don’t want agents pushing through a contract quickly simply because they need the money, or can’t be bothered, or don’t understand the clauses.

By the way, most agents are not lawyers (although some are). I’m not, nor do I think it absolutely necessary for an agent to also be a lawyer. An agent just has to be good at publishing contracts—which often necessitates thinking like a lawyer. None of the publishers’ in-house contracts managers I work with are lawyers either, and yet they do the negotiation. However, lawyers are often consulted on points of intellectual-property law if necessary.

By the way, lots of smaller agencies work with freelance professional contract managers (who once worked in-house for the big publishers) to assist in contract negotiation. This is a good thing, and I highly recommend it so that the author benefits from the contract manager’s savvy and gets a level of protection if the agent sucks at negotiation.

But it’s still essential for an agent to be a good negotiator. Why? Because it’s the agent who negotiates the initial offer (that’s what you’re paying them for!), not some hired contract professional. And often that necessitates some savvy pre-negotiating skills during the offer stage—before a contract is even generated. For authors further along in their careers, this is a given; they know it needs to be done. It’s not a maybe. And if your agent is not a good negotiator, you can see pretty clearly how that is going to impact your level of success and your longterm writing career. Your agent might not know how to do this.

Next month, Karen and I will tackle The Negotiating Tactics of Good Agents.

*******

The genesis: In January 2015, Backspace co-founder Karen Dionne and I had a conversation in which she mentioned that writers sometimes want representation so badly they are willing to sign with an average or even a below-average agent. Trust me, not all agents are equal. I replied, “Well, writers don’t know what they don’t know.”

In that moment, a lightbulb went on for both of us. Writers don’t know what a good agent does. How could you if (1) you’ve never experienced it and (2) you’ve only ever had one agent and no way to assess just how strong he or she might be at the job?

Thus, this series of articles was born.

*******

Archive:

February 2015 Newsletter – Article #1: Agent As Savvy Business Manager

March 2015 Newsletter – Article #2: Commanding Authority: An Agent’s Negotiation Edge.


Article 3 – Good Agents Geek Out About Contracts by Karen Dionne

To prepare for this month’s topic, I watched a video from the 2011 Backspace Writers Conference in which Kristin, Scott Hoffman of Folio Literary Management, Suzie Townsend (then of Fineprint  Literary Management, now with New Leaf Literary), and Diana Fox of Fox Literary discussed the nuances of publishing contracts.

One of the things I learned is that publishers often change their contracts to give themselves more favorable terms. Agents who are paying attention pick up on the differences and understand the ramifications. Agents who aren’t, don’t.

As an example, the agents explained how a few year ago Simon & Schuster removed four sentences from the end of the rights reversion clause. These sentences defined the sales threshold, which states that rights will revert to the author if the number of sales drops under a specified amount. Removing these sentences meant that if the publisher also bought digital rights, the book would in effect never go out of print, and the publisher would own the rights to the work in perpetuity.

This created a furor among agents who were paying attention. But not every agent caught the change. Some even let their clients sign the contract, then had to negate that contract and start over again. And some didn’t catch the change at all, which left their authors with no possibility of ever getting the rights to these novels back.

I also learned that agents “geek out” over contracts, as one agent put it. It’s a good thing they do, because as I listened to these agents enthuse over the finer points of contract details, my eyes glazed over. Not that the panel wasn’t interesting and enlightening—it was. Rather, I quickly realized that the nuances of contracts were so not my thing—like signing up for a study course and finding out two weeks in that you have zero interest in the subject.

“I go over every contract with a fine-toothed comb,” Diana Fox said. She then writes a detailed memo and sends it to her contracts manager, who goes over the contract again. “If Random House puts a clause in their boilerplate, I’ll know it.”

I read my first contract carefully. All 11 legal-sized pages of fine print. Four times. I also asked my agent questions, because I wanted to be sure I understood what I was signing.

But agents drill down deeper. An author might not even see the earliest version of the contract their publisher offers. “There are very few things publishers aren’t willing to negotiate on,” Scott Hoffman told the audience. “Some are deal-breakers, and it’s up to the agent and author to decide if a contract clause is in the author’s interest.”

So thank God for agents who geek out over foreign rights, audio rights, boilerplate contracts, and out of print clauses. Good agents watch out for their clients in ways authors don’t even know.

********

Karen Dionne is an internationally published thriller author, co-founder of the online writers discussion forum Backspace, and organizer of the Salt Cay Writers Retreat and the Neverending Online Backspace Writers Conference.

She is represented by Jeff Kleinman of Folio Literary Management. This panel discussion along with the full Backspace Writers Conference video archives are available exclusively to Backspace subscribers and online conference registrants. 


Article 2: Commanding Authority: An Agent’s Negotiation Edge

Article #2: Commanding Authority: An Agent’s Negotiation Edge

in the series WHAT MAKES A GOOD AGENT? by Agent Kristin and Karen Dionne, co-founder of Backspace

In January, one my clients emailed me a great note to kick off the new year. She wrote:

“This is going to sound random, but I feel the need to do a bit of effusive gushing to you. As you probably know, authors eventually turn to gossip (about their contracts too) and I recently found out that several writers I know are stuck with joint accounting, one of them being a NYT bestseller. To say the least, I was agog. My next, immediate thought was that I have the best agent ever.”

Because my client knows that all our contracts here at NLA have separate accounting. I really appreciate when my authors recognize a good job well done because let me tell you, great contract negotiation is not the sexy part of agenting. But it’s the backbone of a great career for my authors.

First, let me explain what joint accounting is: A multi-book deal that grants joint accounting allows the publisher to apply all earnings for all books on that contract to the total advance granted; in other words, none of the books earns out until all of the books earn out.

Separate accounting, on the other hand, specifies that each book’s earnings apply only to that book’s advance; in other words, if book one earns out, the author begins to earn royalties, even if the subsequent books on that contract have yet to earn out. Yay! Royalties!

I decided early in my career that Nelson Literary Agency would only do multi-book deals if the contract granted separate accounting. I weighed the pros and cons, and I just couldn’t see an advantage to granting joint accounting. Since my job as agent is to advocate on behalf of my authors, I’ve held firm on this issue—even if it means we can only sell one book to an editor instead of two or three.

If editors know that joint accounting isn’t available, they don’t bother asking me for it. Why am I sharing this example? Because I want to discuss what could be considered a rather nebulous concept, and my #1 criteria for what makes a good agent:

Good agents command authority naturally.

What does it mean to command authority naturally? For one thing, it means that an editor has immediate respect for the agent. They view the agent as powerful, well informed, and fair yet tough. Especially when it comes to negotiation. So if the agent has established that she won’t grant XYZ in a deal, then editors don’t bother asking for it. In other words, the agent is not a pushover as a negotiator.

There are many agents who are absolutely lovely people but who don’t command authority naturally.

Why should you, as a writer, care about this?

Because it is the essence of this biz. Publishers (who are not evil, by the way) want the most they can get out of a contract (which is often not in the author’s favor), and the agent’s job is to grant only what won’t be detrimental or disadvantageous to the author so that the author gets the fairest contract possible.

The goal is to meet in the happy middle, where both the publisher and the author feel satisfied. And it’s simple: Authors with strong contracts have more successful careers.

So if an agent commands authority naturally, editors will respect that. Editors who know an agent is a negotiating pushover will ask for as much as possible, and since the agent won’t stand tough on key issues, writers get stuck with yucky stuff in their contracts, joint accounting being just one example.

In fact, I know of agents who simply accept the first offer an editor gives without any negotiation whatsoever. Yikes!

Agents who command authority naturally get their projects read more quickly.

Agents who command authority naturally get higher advances and better royalites for their authors’ work.

Agents who command authority naturally are granted more compromises during negotiation, making sure contracts are advantageous for the author.

Agents who command authority naturally get more leverage when dealing with conflict (for instance, over a cover image or something else in the author’s career).

By the way, this doesn’t mean that the agent will always get her way. But it does mean that the editor respects, values, and weighs seriously the agent’s opinion. And sometimes that translates into swaying the editor on the issue.

Agents who command authority naturally are just better at the job of agenting. And in my mind, if the agent is better at agenting, the author is going to have a stronger, more successful career.

And since authors want to make a living writing, this becomes pretty important indeed!

*******

The genesis: In January 2015, Backspace co-founder Karen Dionne and I had a conversation in which she mentioned that writers sometimes want representation so badly they are willing to sign with an average or even a below-average agent. Trust me, not all agents are equal. I replied, “Well, writers don’t know what they don’t know.”

In that moment, a lightbulb went on for both of us. Writers don’t know what a good agent does. How could you if (1) you’ve never experienced it and (2) you’ve only ever had one agent and no way to assess just how strong he or she might be at the job?

Thus, this series of articles was born.

*******

Archive:

February 2015 Newsletter – Article #1: Agent As Savvy Business Manager


Article 2 – When Agents & Editors Respect Respect Each Other by Karen Dionne

 

Guest Blogger: Karen Dionne

One of my favorite panels regularly offered at my Backspace Writers Conferences was one in which I invited an agent I respected to bring in an editor they’d worked with to discuss the process of selling and bringing out a book. Sometimes called “Agents and Editors, Working Together,” sometimes “The Business of Selling the Book,” these discussions were far more interesting than their titles. I loved how they pulled back the curtain on an aspect of the publishing business that authors generally don’t get to see: the relationship between agents and editors.

The conversations were always casual, engaging, and honest. It was easy to see that the agent and editor respected each other and enjoyed working together—even though they acknowledged their jobs often put them on opposite sides of the fence.

I thought about these panel discussions after I read Kristin’s article about how a good agent needs to command authority naturally. In one discussion, the editor lamented how hard it was to know if the agent pitching a manuscript was telling the truth.

Agents lie to editors? I remember thinking. Apparently, some do. Editors know it, and it makes their jobs harder. As an example, the editor said an agent might tell her they have “interest” in a manuscript. Normally this means another editor wants to acquire the book. But “interest” could mean as little as the agent and editor had waved to each other in the hallway. The editor was exaggerating for effect, but the truth beneath her comment was clear.

“I will never, ever lie to an editor,” the agent broke in. “I’m a salesperson, so naturally I’m going to portray the book in the best possible light. But I will never say anything that’s factually untrue.”

“I know that,” the editor replied. “And I trust you. Personal relationships are super important to figuring out what’s actually going on [in negotiations].”

Or as Kristin puts it: “For an agent to command authority naturally means that an editor has immediate respect for the agent. They view the agent as powerful, well informed, fair, yet tough.”

Kristin also says: “Agents who command authority naturally get their projects read more quickly.” 

In the same panel discussion, the agent told the audience that if he thinks a book will generate interest from multiple publishers, he likes to send the book to editors on a Thursday. Why Thursday? So the editors can read the manuscript that night, get their colleagues on board the next day so they in turn can read the book over the weekend, and the following week the agent can hopefully set up an auction.

“We hate when agents do that!” the editor said. Dropping everything she had planned and reading is the last thing she wants to do at the end of a busy week. But because she respects the agent, she trusts that when he says the manuscript is hot, it really is, and he’s not lying in order to get the project read quickly. So she reads the manuscript right away.

“Agents who command authority naturally are just better at the job of agenting,” Kristin says.

At another of my Backspace conferences, when I met the editor the agent brought in for this panel and told her who my agent was, she said, “You have a good agent. He’s tough.”

I found out later that my agent and this editor are friends. Yet their friendship doesn’t preclude my agent being a tough negotiator when the situation calls for it. More important, this editor respects my agent because he is.

*****

Karen Dionne is an internationally published thriller author, co-founder of the online writers discussion forum Backspace, and organizer of the Salt Cay Writers Retreat and the Neverending Online Backspace Writers Conference.

She is represented by Jeff Kleinman of Folio Literary Management. This panel discussion along with the full Backspace Writers Conference video archives are available exclusively to Backspace subscribers and online conference registrants. 


Article 1: Agent As Savvy Business Manager

The genesis: In January 2015, Backspace co-founder Karen Dionne and I had conversation in which she mentioned that writers sometimes want an agent so badly they are willing to sign with an average or even a below-average agent. Trust me, not all agents are equal. I replied, “Well, writers don’t know what they don’t know.”

In that moment, a lightbulb went off for both of us. Writers don’t know what a good agent does. How could you if (1) you’ve never experienced it and (2) you’ve only ever had one agent and no way to assess just how strong he or she might be at the job?

Thus, this series of articles was born.

*****

Article #1 in the series WHAT MAKES A GOOD AGENT? by Agent Kristin and Karen Dionne, co-founder of Backspace

Simply put, a literary agent is the person an author hires to manage his or her publishing career.

Literary agent is actually an odd career. It’s the only job in which the the agent picks the client (writer) first, and then the client decides whether or not to hire the agent. What other job is remotely like that? None. It’s unique to this industry.

Regardless, once an agent offers you representation, saying “yes” and hiring your agent is a business decision—one with real consequences that directly impact the success of your career.

And not all agents are equal—especially in their skill set.

Yes, I know that many writers only receive one offer of representation and don’t have the luxury of their choice of agents. In the end, you’ll have to do what is right for you. Just keep in mind the nine criteria below as you make decisions about hiring—or firing—your agent.

I’m constantly amazed at how rarely writers demonstrate business acumen when it comes to their own publishing career—something that would never fly in their day jobs or in other parts of their lives. Ultimately, an author who is smart, educated, and business-oriented will have a more successful career.

The same traits that make a good business manager also make a good agent. Before I give you my list, take a moment to jot down your own list. In your opinion, what makes a savvy business manager? Rank your criteria in order of importance.

Now let’s see if we match up.

In my opinion, based on a decade-plus of experience, good agents:

  • command authority naturally
  • are good negotiators and unafraid to walk away from a deal if necessary to protect the author
  • are assertive (not to be confused with aggressive)
  • are comfortable with conflict and don’t avoid it (as in they don’t acquiesce to the publisher so as to not “rock the boat”)
  • advocate on behalf of the author (not to be confused with persuading the author to accept whatever the publisher wants simply to avoid conflict)
  • are highly organized
  • are skilled, financially stable entrepreneurs if they run their own agencies
  • know how to be team players
  • are good communicators, both with you and with the in-house publishing team

In addition, they might also be the author’s cheerleader!

I know from personal experience that a lot of agents are good at the bottom two items on this list (being a team player and being a good communicator), but these agents don’t rate high on what I consider the top seven criteria. The hard stuff. The real stuff.

Good/great agents offer the whole package. It’s important for you to know if yours qualifes.

It’s so important, in fact, that in 2015, I’m going to tackle each criteria in this series of monthly articles and explain how it relates to the job of agenting, all in hopes of giving writers the necessary business tools that can be applied to their careers.


Article 1 – Backspace Perspective: Agent As Savvy Business Manager

GUEST BLOGGER : Karen Dionne

After seeing Kristin’s criteria list, perhaps you’re wondering, “How can I tell if an agent who has offered me representation meets her criteria when I haven’t worked with them yet?”

The answer is simple: Talk to their clients.

You might be reluctant to ask for references, thinking it’s too forward. Or after a long and oftentimes brutal agent search, you might be afraid to rock the boat.

But as Kristin points out, once an agent has asked to represent an author, whether or not they work together is now up to the author. As with all professionals, a good agent will be happy to provide a prospective client with references.

You might also be reluctant to talk to an agent’s clients before you sign, thinking the exercise is moot. Of course the author won’t say anything negative about their agent, so what’s the point? But if you frame your questions correctly, you should be able to get the answers you need. For instance, to find out if the agent is a good negotiator, you might ask, “How did your submission process go?”

Likely, you’ll get a detailed account (we authors do love to tell stories!)—how many publishers the project was sent to, how many rejections came in before they got an offer, who bought the rights to the project in the end, whether they bought North American or world rights, and so on. If the agent negotiated more favorable terms for the author, you can be sure they’ll mention it.

Example #1: A writer friend had two offers for his first novel. Publisher A offered a $40,000 advance, while Publisher B offered $75,000. My friend would have gladly accepted Publisher B’s offer, but his agent thought they could do better. She went back to Publisher B and told them they had another offer (though not how much), then added that her author would really like to work with Publisher B, but was hoping for an advance more in the area of $100,000. Publisher B agreed.

Example #2: When my first novel sold, my agent negotiated a considerably higher advance even though only one offer was on the table.

On the other hand, if the client tells you they accepted the publisher’s original offer without negotiation, perhaps indicating their agent told them it’s standard practice for first-time authors to accept the offer as-is because they don’t yet have sufficient clout to negotiate, watch out. It’s not. Contracts are always negotiable, even when an author approaches an agent with an offer from a publisher in hand, as Kristin will explain in future articles.

Kristin says a good agent isn’t afraid of conflict. A question you might ask to find out how the prospective agent handles conflict might be, “Did you like your cover?” Again, listen carefully to the answer. Did the agent talk the author into accepting a cover they didn’t like? Or did he or she advocate for changes? When my publisher sent over the PDF of the cover for my second novel, before I could even open the email to see what the cover looked like, I got an email from my agent saying, “Don’t worry. We’ll fix this.”

If the author says they loved their cover, then ask about something else. There are always problems. Try to find out what the agent did to resolve them. What you’re looking for are warning signs that this is a passive agent, a non-negotiator, someone who shies away from conflict rather than dealing with it in a mature and productive manner.

Most publishers won’t roll out the red carpet for a new author; it’s up to their agent to fight for things that an new author probably expects should be taken for granted. Signing with a timid agent or an agent who is naïve about the business can result in lower advances, less in-house publicity, no bookstore co-op, a lackluster cover, and a-less-than-favorable contract.

Remember: It’s your career. Talk to the prospective agent’s clients and find out all you can using the criteria in Kristin’s list. If your gut says the agent is not the right person to help you reach your publishing goals, keep looking.

*****

Karen is an internationally published thriller author, co-founder of the online writers discussion forum Backspace, and organizer of the Salt Cay Writers Retreat and the Neverending Online Backspace Writers ConferenceShe is represented by Jeff Kleinman of Folio Literary Management.


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